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PA Bulletin, Doc. No. 96-2103


Water Quality Certification under Section 401 of the Federal Clean Water Act

[26 Pa.B. 6027]

   The Department of Environmental Protection hereby provides public notice that 401 water quality certification is issued for certain abandoned mine reclamation activities conducted under the authority of Title 4 of the Surface Mining Control and Reclamation Act of 1977 et. seq., which may result in a discharge of dredge or fill material into waters of the Commonwealth. The Department certifies that the activities comply with the following conditions, and meet the applicable requirements of the Federal Clean Water Act (CWA) (33 U.S.C.A. § 1341). The Department has also determined that these restoration activities qualify for a waiver of permit requirements set forth at 25 Pa. Code Chapter 105.12(a)(16), Dam Safety and Waterway Management rules and regulations under the Dam Safety and Encroachments Act (DSEA) (32 P. S. §§ 693.1--693.27).

   Section 401(a) of the CWA (33 U.S.C.A. § 1341(a)), requires that any applicant for a Federal license or permit, which may result in a discharge to waters of the United States, must provide the licensing or permitting agency with a certification from the state in which the discharge will originate verifying that the discharge resulting from the construction or operation of the project will comply with sections 301--303, 306 and 307 of the CWA (33 U.S.C.A. §§ 1311--1313, 1316 and 1317) including applicable state water quality requirements. Section 7(a) of the DSEA (32 P. S. § 693.7) provides for the waiver of permit requirements by regulation, for any category of dam, water obstruction or encroachment which is determined to have an insignificant effect upon the safety and protection of life, health, property and the environment. The regulations, identifying which structures and activities are waived from the permit requirements of the DSEA, are set forth at 25 Pa. Code § 105.12(a).

   On October 5, 1996 a notice was published in the Pennsylvania Bulletin regarding this proposed certification under section 401 of the Federal Clean Water Act and categorical waiver from the permit requirements of the DSEA. See 26 Pa.B. 4804-5. No written comments or objections were submitted within the 30-day period provided for public comment.

   The Division of Wetlands Protection has reviewed the environmental assessment procedure under the requirements of the National Environmental Policy Act of 1969 (NEPA), as required for restoration projects under Title 4 of the Surface Mining Control and Reclamation Act of 1977 et. seq. and finds that procedure to be consistent with the environmental assessment requirements of 25 Pa. Code Chapter 105.15. The procedure includes an environmental assessment of the following factors which are also found in Chapter 105:

State and Federal Threatened and Endangered Species
Public Water Supply
Water Quality Standards
Scenic Rivers
Recreational Resource Value
Historic and Cultural Resources
Fish and Wildlife Resources

   This assessment process along with the existing United States Fish and Wildlife Service Project Coordination Requirements, required by Section 7 Consultation of the Endangered Species Act, provides an adequate measure of regulatory oversight without necessitating additional permit application and review actions. The Department therefore categorically waives under the provisions of section 105.12(a)(16), water obstruction and encroachment activities approved under Title 4 of the Surface Mining Control and Reclamation Act of 1977 et. seq. and which meet the following environmental parameters:

   (a)  the site contains less than 0.05 acre of vegetated wetlands as defined in the 1987 U. S. Army Corps of Engineers Wetland Delineation Manual, or

   (b)  the body of water or associated discharge from a body of water* has a pH <5.0 or any one of the following elevated total metal levels:
Aluminum>0.6 mg/l
Iron>7.0 mg/l
Manganese>4.0 mg/l

   *Body of water is defined as any natural or artificial lake, pond, reservoir, swamp, marsh or wetland.

   Prior to commencing any activity set forth at 25 Pa. Code § 105.12(a)(16), the applicant must obtain all other necessary permits or approvals from the Department of Environmental Protection, including but not limited to, those required by The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the DSEA (32 P. S. §§ 693.1--693.27), the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003), the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305) and the regulations promulgated thereunder including 25 Pa. Code Chapters 91, 91, 93, 95, 101, 102, 105 and 260--299.

   For activities which impact wetlands, all delineations shall be conducted in accordance with Pennsylvania's procedures for wetland delineation. (The present procedure is published at 25 Pa. Code § 105.451.) On February 3, 1996, the Department adopted the Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1, 1987 Manual) with 6 March 1992 guidance as the methodology for delineating wetlands.

   The exceptions to this waiver are those activities which require the construction, operation and maintenance of jurisdictional dams or projects located in floodways. Dams with drainage areas of greater than 100 acres, storage capacities of greater than 50 acre-feet, or with a maximum depth of water greater than 15 feet as measured by the upstream toe of the dam, require Dam Permits from the Department (see 25 Pa. Code § 105.3). If the proposed project is located within a floodway, a separate individual permit may need to be secured from the Regional Soils and Waterways Section. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by FEMA. In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

   The Department retains the discretion, on a case-by-case basis, to deny or revoke certification under section 401(a) of the CWA for structures and activities listed in 25 Pa. Code § 105.12(a)(16) if the Department finds upon investigation or complaint, that a particular project is violating, or will violate section 401(a) of the CWA or state water quality requirements.

   Projects which do not meet the above provisions will be individually reviewed by the Department for consideration of waiver applicability or necessary permit action. Activities not qualifying for this proposed categorical waiver will be processed through the normal public notice process required for 401 Water Quality Certification or Chapter 105 permit applications, whichever is appropriate.

   This procedure and action are the result of a cooperative effort among Department of Environmental Protection, U. S. Army Corps of Engineers, U. S. Fish and Wildlife Service, Fish and Boat Commission, Game Commission, U. S. Office of Surface Mining and U. S. Environmental Protection Agency.

   In conjunction with the Department's October 5, 1996 notice, the Corps of Engineers also placed this proposal on public notice October 4, 1996 (refer to CENAB-OP-RR, Special Public Notice # 97-01) under the requirements of the Clean Water Act for incorporation with the Pennsylvania State Programmatic General Permit-1 (PASPGP-1). In response, the Corps of Engineers received only two written comments, and both were in support of the proposal.

   Therefore, the restoration activities qualifying for 401 Water Quality Certification and for a waiver of permit requirements set forth at 25 Pa. Code Chapter 105.12(a)(16) are also incorporated into the PASPGP-1.

   For further information concerning this certification and waiver, contact Fran Koch, Chief, Education and Technical Assistance Section, Division of Wetlands Protection, Bureau of Dams, Waterways and Wetlands, P. O. Box 8554, Harrisburg, PA 17105-8554, (717) 787-6827 or e-mail to, or Pam Milavec, Water Pollution Biologist Supervisor, Bureau of Abandoned Mine Reclamation, 122 S. Center Street, Ebensburg, PA 15931, (814) 472-1800 or e-mail to This information is also available electronically through the DEP Web site ( Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5788 (voice users).


[Pa.B. Doc. No. 96-2103. Filed for public inspection December 13, 1996, 9:00 a.m.]

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